Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County v. Eric C. Gulden, Jeremy Crawford, David J. Klahn

Nov 30 2015, 7:00 am

ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEES
Gregory F. Zoeller Marce Gonzalez, Jr.
Attorney General of Indiana Dyer, Indiana
Frances H. Barrow
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Kent W. Abernathy, November 30, 2015
Commissioner of the Indiana Court of Appeals Case No.
Bureau of Motor Vehicles and 45A03-1503-MI-73
Bernard Carter, Prosecuting Appeal from the Lake Superior
Attorney for Lake County, Court
The Honorable Julie N. Cantrell,
Appellants-Respondents, Judge
v. Cause Nos. 45D09-1407-MI-62,
45D09-1409-MI-90, 45D09-1407-
MI-61, 45D09-1406-MI-55, &
Eric C. Gulden, Jeremy 45D09-1406-MI-57
Crawford, David J. Klahn, John
P. Martin, and James M.
Panozzo,
Appellees-Petitioners.

Riley, Judge.

Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015 Page 1 of 19
 STATEMENT OF THE CASE

[1] Appellants-Respondents, Kent W. Abernathy, Commissioner of the Indiana

Bureau of Motor Vehicles, and Bernard Carter, Prosecuting Attorney for Lake

County (collectively, BMV), appeal from the consolidated trial court’s denials

of the BMV’s motions to correct error, and in one case, the BMV’s motion for

relief from judgment, in which the trial court upheld its grant of the five

Appellees-Petitioners’, Eric C. Gulden (Gulden), Jeremy Crawford (Crawford),

David J. Klahn (Klahn), John P. Martin (Martin), and James M. Panozzo

(Panozzo) (collectively, Appellees), petitions for judicial review of the BMV’s

determinations that each of them qualified as an habitual traffic violator (HTV).

[2] We reverse.

ISSUE

[3] The BMV raises one issue on appeal, which we restate as: Whether Indiana

Code section 9-30-10-4(e), which requires the BMV to use the dates of the

offenses rather than the dates of the judgments in determining a person’s status

as an HTV, violates the ex post facto clauses of the Indiana and United States

Constitutions, as applied to Appellees who committed their third HTV-

qualifying offense prior to the effective date of subsection 4(e) but whose third

judgment was entered after that provision became effective.

FACTS AND PROCEDURAL HISTORY

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[4] On October 4, 2003, Gulden committed the offense of reckless driving, for

which judgment was entered on November 17, 2003. He committed the offense

of operating while intoxicated on January 31, 2004, and judgment was entered

against him on March 28, 2005. Thereafter, on July 29, 2007, he committed

the offense of operating while intoxicated endangering a person, with judgment

entered on April 21, 2014. On May 1, 2014, the BMV notified Gulden that he

had accumulated three qualifying judgments within a ten-year period and as a

result, Gulden was deemed an HTV and his driver’s license was suspended for

ten years. On July 16, 2014, Gulden filed a petition for judicial review of his

HTV determination.

[5] Crawford committed the offense of operating while intoxicated on October 27,

2003, November 30, 2003, and January 5, 2008. Judgment on these offenses

was entered on December 22, 2003, September 12, 2005, and September 3,

2014, respectively. On September 9, 2014, five days after the last qualifying

judgment, the BMV notified Crawford of his HTV status and his ten-year

license suspension. On September 24, 2014, Crawford filed a petition for

judicial review of his HTV determination.

[6] On August 24, 2002, Klahn committed the offense of operating while

intoxicated and judgment was entered on November 27, 2002. He committed

the offense of operating while intoxicated endangering a person on December

30, 2007, with judgment entered on July 3, 2008. Thereafter, on August 22,

2011, Klahn committed the offense of prior operating while intoxicated within

five years, and the trial court entered judgment on October 4, 2013. The BMV

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 informed Klahn of his HTV status and ten-year license suspension by notice

dated October 19, 2013. On July 16, 2014, Klahn filed a petition for judicial

review of his HTV determination.

[7] Martin committed the offense of driving while intoxicated on January 4, 2004,

with judgement entered thereon on February 23, 2004. On February 19, 2008,

he committed the offense of operating while intoxicated endangering a person,

and the trial court entered judgment on April 14, 2014. On November 14,

2008, Martin committed the offense of prior operating while intoxicated within

five years, and judgment was also entered on April 14, 2014. On May 14, 2014,

the BMV notified Martin of his HTV status and his resulting ten-year license

suspension. On June 26, 2014, Martin filed a petition for judicial review of his

HTV determination.

[8] On February 7, 2004, Panozzo committed the offense of reckless driving, and

judgment was entered on March 15, 2004. He committed the offense of

operating while intoxicated on April 21, 2007, and judgment was entered

against him on October 19, 2007. On December 23, 2011, he committed the

offense of operating while intoxicated endangering a person, with judgment

entered on April 28, 2014. On May 14, 2014, the BMV notified him of his

HTV status and his ten-year license suspension. On June 2, 2014, Panozzo

requested administrative review of the HTV determination, after which the

BMV upheld its decision on June 25, 2014. The following day, Panozzo filed a

petition for judicial review with the trial court.

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[9] The trial court granted Appellees’ separate petitions for judicial review based on

its interpretation of Indiana Code section 9-30-10-4, which defines an HTV. 1

The trial court noted—without any references to case law—that this statute

previously required reliance on the conviction dates to determine whether the

three qualifying offenses fell within the ten-year time period for the HTV

determination. On July 1, 2012, a new subsection 4(e) of the statute took effect

which provided that the date of the commission of the offense, rather than the

judgment date, is determinative to calculate the ten-year time limitation.

Although the time between each Appellee’s first and third qualifying conviction

exceeded ten years, at least one of each Appellee’s judgments was entered after

the amendment took effect. Thus, when the HTV status was triggered by the

third judgment, the BMV used the dates of the offense rather than the judgment

dates to determine each Appellee’s HTV status. The trial court concluded that

this retroactive application of subsection 4(e) to each Appellee violated the ex

post facto clauses of the United States and Indiana Constitutions. The BMV

filed a motion to correct error in the cause of Gulden, Klahn, Martin, and

Panozzo, and a motion for relief from judgment in Crawford’s cause. In each

cause, the BMV argued that because the purpose of the HTV statute was public

safety and health rather than punishment, the ex post facto clause was not

applicable. The trial court denied the BMV’s motion in each cause.

1
Although the order granting Crawford’s petition for judicial review did not provide the trial court’s reasons,
Crawford’s petition raised the same ex post facto argument as the other Appellees. As such, we assume that
Crawford’s petition was granted on the same grounds.

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[10] The BMV now appeals these five judgments, which we consolidated on appeal.

Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[11] We review the denial of a request for a new trial presented by a Trial Rule 59

motion to correct error or—with respect to Crawford—a Trial Rule 60(B)

motion for relief from judgment for abuse of discretion. Speedway SuperAmerica,

LLC. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. We will reverse

only where the trial court’s judgment is clearly against the logic and effect of the

facts and circumstances before it, or where the trial court errs on a matter of

law. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).

[12] However, when reviewing a challenge to the constitutionality of a statute, we

apply a de novo standard of review. Gul v. City of Bloomington, 22 N.E.3d 853,

857 (Ind. Ct. App. 2014), trans. denied. As such, every statute stands before us

clothed with the presumption of constitutionality until clearly overcome by a

contrary showing. In re Adoption of K.G.B., 18 N.E.3d 292, 299 (Ind. Ct. App.

2014) (citing State Bd. of Tax Comm’rs v. Town of St. John, 702 N.E.2d 1034, 1037

(Ind. 1998)). The party challenging the constitutionality of the statute bears the

burden of proof and all doubts are resolved against that party. Id. If two

reasonable interpretations of a statute are available, one of which is

constitutional and the other not, we will choose that path which permits

upholding the statute because we will not presume that the legislature violated

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the constitution unless the ambiguous language of the statute requires that

conclusion. Id. In addition, where, as here, the issue focuses on the

constitutionality of a statute as applied to Appellees, the reviewing court can

only “declare the challenged statute or regulation unconstitutional on the facts

of the particular case.” Id. (citing Hazelwood v. State, 3 N.E.3d 39, 40 (Ind. Ct.

App. 2015), reh’g denied).

II. Applicability of Ind. Code § 9-30-10-4

Section 4 of the Habitual Violator of Traffic Laws Chapter provides, in

pertinent part,

(b) A person who has accumulated at least three (3) judgments within
a ten (10) year period for any of the following violations, singularly or
in combination, and not arising out of the same incident, is a habitual
violator:
(1) Operation of a vehicle while intoxicated.
***
(5) Reckless driving.
***
(e) For purposes of this section, the offense date is used when
determining the number of judgments accumulated within a ten (10)
year period.
I.C. § 9-30-10-4. Even though the HTV statute has been amended several times

in recent years, only the 2012 amendment, which became effective on July 1,

2012 and which added subsection 4(e), is directly at issue here. See Pub. L. No.

125-2012, § 349, 2012 Ind. Acts 2169, 2342-44.

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[13] Pursuant to the language of the statute, the HTV determination is triggered by

the accumulation of a third judgment for a qualifying violation within ten years.

See I.C. § 9-30-10-4(b). Appellees do not appear to dispute that under the plain

terms of the statute, they each qualify as an HTV by application of subsection

4(e). Gulden committed qualifying offenses on October 4, 2003, January 31,

2004, and July 29, 2007. With each violation, a judgment was entered on

November 17, 2003, on March 28, 2005, and April 21, 2014 respectively.

Crawford committed qualifying offenses on October 27, 2003, November 30,

2003, and January 5, 2008. Corresponding judgments were entered on

December 22, 2003, September 12, 2005, and September 3, 2014. Klahn

committed the offenses on August 24, 2002, December 30, 2007, and August

22, 2011. Judgment on those qualifying offenses was entered on November 27,

2002, July 3, 2008, and October 4, 2013, respectively. Martin’s offenses were

committed on January 4, 2004, February 19, 2008, and November 14, 2008,

with one judgment entered on February 23, 2004, and two judgments entered

on April 14, 2014. Lastly, Panozzo committed qualifying offenses on February

7, 2004, April 21, 2007, and December 23, 2011. Judgments were entered on

March 14, 2004, October 19, 2007, and April 28, 2014.

[14] Although the time between each Appellee’s first and third HTV qualifying

judgment exceeded ten years, at least one of each Appellee’s three judgments

was entered after July 1, 2012, when subsection 4(e) became effective.

Accordingly, the BMV used the Appellee’s offense dates to calculate each

Appellee’s HTV status. Classifying each Appellee as an HTV, the BMV was

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 required to suspend their driving privileges for ten years. See I.C. § 9-30-10-5(b)

(“the bureau shall suspend the person’s driving privileges”).

[15] Nevertheless, the trial court concluded that subsection 4(e) rendered the statute

unconstitutional ex post facto as applied to Appellees under both the United

States and the Indiana Constitutions. The trial court reasoned that but for the

amendment, which was enacted after each Appellee committed his third HTV

qualifying offense, the Appellees would not have been deemed habitual traffic

violators because each Appellee’s third judgment occurred more than 10 years

after his first. It is only when the commission date of the offense is used, each

Appellee falls within the ten-year HTV time period. The BMV now disputes

the trial court’s application of the ex post facto clause

III. Ex Post Facto Clause

[16] Both the U.S. Constitution and our state Constitution contain prohibitions

against ex post facto laws. Article 1, Section 10 of the United States Constitution

states that “[n]o State shall . . . pass any . . . ex post facto Law.” The Indiana

Constitution provides that “[n]o ex post facto law . . . shall ever be passed.”

IND. CONST. art. I, § 24. Among other things “[t]he ex post facto prohibition

forbids Congress and the States to enact any law ‘which imposes a punishment

for an act which was not punishable at the time it was committed; or imposes

additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S.

24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71

U.S. (4 Wall.) 277, 325-36, 18 L.Ed. 356 (1867)) (footnote omitted). The

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 underlying purpose of the ex post facto clause is to give effect to the fundamental

principle that persons have a right to a fair warning of that conduct which will

give rise to criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.

2006) cert denied 549 U.S. 996 (2006). Although both provisions are similarly

worded, our supreme court acknowledged in Wallace that we “nonetheless

apply an independent analysis when interpreting provisions in our own

[C]onstitution.” Wallace v. State, 905 N.E.2d 371, 377-78 (Ind. 2009), reh’g

denied. “The Indiana Constitution has unique vitality, even where its words

parallel federal language.” Id. at 378 (quoting State v. Gerschoffer, 763 N.E.2d

960, 965 (Ind. 2002)). As such, “[w]hen we interpret language in our state

[C]onstitution substantially identical to its federal counterpart, ‘we may part

company with the interpretation of the Supreme Court of the United States or

any other court based on the text, history, and decisional law elaborating the

Indiana constitutional right.’” Id. (quoting Ajabu v. State, 693 N.E.2d 921, 929

(Ind. 1998)). “When interpreting similarly worded provisions in the Indiana

Constitution, we often rely on federal authority to inform our analysis, even

though the outcome may be different. Id. (quoting Collins v. Day, 644 N.E.2d

72, 75 (Ind. 1994)).

[17] Here, the State does not dispute that the application of subsection 4(e) creates

an ex post facto effect as to these Appellees. Each Appellee committed his third

HTV-qualifying offense prior to the enactment of the statutory amendment, and

received a judgment on the offense after the amendment took effect.

Calculating the ten-year term for the HTV determination based on the guideline

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 enacted in subsection 4(e)—the date of the offense—the BMV suspended

Appellees’ driving privileges for a period of ten years. See I.C. § 9-30-10-4(b),

(e); -5(b).

[18] We have previously stated that the constitutional prohibitions against ex post

facto criminal sanctions require that criminal proceedings be governed by the

statutory provision in effect at the time of the offense. Settle v. State, 709 N.E.2d

34, 35 (Ind. Ct. App. 1999). Applying this well-established legal adage, we

should apply the version of I.C. § 9-30-10-4 in effect at the time of the

commission of the third triggering HTV-offense. However, we have noted that

the ex post facto clause “‘does not give a criminal a right to be tried, in all

respects, by the law in force when the crime charged was committed.’” Hayden

v. State, 771 N.E.2d 100, 102 (Ind. Ct. App. 2002) (quoting Dobbert v. Florida,

432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)), trans. denied. The

clause is not designed “to limit legislative control of remedies and modes of

procedure which do not affect matters of substance.” Id. “Even though it may

work to the disadvantage of a defendant, a procedural change is not ex post

facto.” Id.

[19] Our first task then is to determine whether our General Assembly’s amendment

of I.C. § 9-30-10-4(e) is procedural or substantive for purposes of the ex post facto

provisions of both the Indiana and United States Constitutions. We have

previously noted that “‘[p]rocedural, adjective or remedial law is that portion of

the law which prescribes the method of enforcing a right or obtaining a redress

for the invasion of that right. Substantive law, on the other hand, is that
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 portion of the law which creates, defines and regulates rights.’” Id. (quoting

State v. Fletcher, 717 P.2d 866, 870 (Ariz. 1986)). “An amendment is

‘procedural in nature for purposes of the ex post facto doctrine, and may be

applied to crimes committed before the effective date’ if it ‘neither changes the

elements of the crime nor enlarges its punishment.’” Weaver v. State, 845

N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d

258, 264 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 (2005)), trans. denied.

[20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind. Ct. App. 2008), the State sought to

amend its information, charging Ramon with Class A felonies instead of Class

B felonies. Id. In light of the supreme court’s ruling in Fajardo v. State, 859

N.E.2d 1201 (Ind. 2007), 2 the trial court denied the State’s proposed

amendment as untimely. Id. Seven days prior to Ramon’s trial, our legislature

amended I.C. § 35-34-1-5 and the trial court granted the State’s motion to

reconsider its request to amend the charging information, charging Ramon with

Class A felonies. Id. After Ramon was found guilty of the Class A felonies, he

appealed, claiming an ex post facto application of the legislative amendment. Id.

at 250. This court held that the application of the revised Indiana Code section

35-34-1-5 did not violate the ex post facto provisions of the Indiana and United

2
In Fajardo, decided in January 2007, our supreme court interpreted I.C. § 35-34-1-5, which addresses the
amendment of charges, as requiring that matters of substance be amended no later than thirty days before the
omnibus date. Fajardo, 859 N.E.2d at 1208. On May 8, 2007, a revision of I.C. § 35-34-1-5 became effective,
essentially codifying pre-Fajardo law, in which amendments of charges related to matters of substance are
allowed at any time before trial as long as the amendment does not prejudice the substantial rights of the
defendant. See P.L. 178-2007, SEC. 1, eff. May 8, 2007.

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 States Constitutions because the statutory amendment was procedural. Id. at

252. In reaching this determination, we concluded that the revised statute

defined the procedures the State must follow in order to amend a charging

information and that the revision did not create any new crimes, change the

elements of any crime or alter any sentencing statutes. Id.

[21] Similarly, in Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied,

this court took Ramon’s analysis one step further and found that strong and

compelling reasons existed favoring retroactive application of the revised

version of I.C. § 35-34-1-5(b). In Hurst, we observed the following:

For over twenty years prior to Fajardo, case law regularly permitted
amendments related to matters of substance as long as the substantial
rights of the defendant were not prejudiced, regardless of whether the
amendments were untimely under I.C. § 35-34-1-5(b). On January 16,
2007, our [s]upreme [c]ourt changed course and held that the statute
clearly required amendments of substance to be made not less than
thirty days before the omnibus dates, even if a defendant’s substantial
rights were not prejudiced by the amendment. The legislature
immediately responded to Fajardo by amending the statute, effective
May 8, 2007, to reflect the pre-Fajardo law (i.e., amendments of
substance permitted anytime before trial so long as the defendant’s
substantial rights are not prejudiced). Thus, Fajardo was superseded by
statute in less than four months. This prompt return to pre-Fajardo law
indicates urgency in the legislature’s desire to negate the effects of
Fajardo. Though the legislature did not expressly provide for
retroactive application of the amended statute, we are confident that
this was the clear intent of such legislation.
Id. (internal citations omitted). See also Gomez v. State, 907 N.E.2d 607 (Ind. Ct.

App. 2009), trans. denied.

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[22] Likewise, here, our legislature explained the “method of enforcing” the HTV

determination through its addition of subsection 4(e). See Hayden, 771 N.E.2d

at 102. Upon the 2012 addition of the subsection, the legislature clarified that

I.C. § 9-30-10-4 is not triggered at the time of the commission of the offense, but

at the time of the judgment for the third qualifying HTV offense. Prior to the

amendment, the statute provided that a person who obtains three qualifying

judgments within ten years is an HTV subject to a ten year administrative

suspension of driving privileges. I.C. § 9-30-10-4(b)(2010). The added

subsection 4(e) merely established that even though the application is triggered

by the judgment of the third qualifying offense, the dates of the offenses are to

be used to calculate whether the qualifying events occurred within a ten-year

period. See I.C. § 9-30-10-4(b),(e) (Supp. 2013). Although as applied to

Appellees, subsection 4(e) became effective after the commission of the third

qualifying offense but prior to its judgment, the amendment “neither change[d]

the elements of the crime nor enlarge[d] its punishment.’” Weaver, 845 N.E.2d

at 1070. The fact that an element of the HTV determination “‘draws upon

antecedent facts’” does not make I.C. § 9-30-10-4(e) an ex post facto law. United

States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (quoting Cox v. Hart, 260

U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922)). See also Funk v. State, 427

N.E.2d 1081, 1087 (Ind. 1981) (“That prior crimes are involved in an habitual

offender prosecution does not change the fact [that] the penalty is imposed only

for the last crime committed.”); Simmons v. State, 962 N.E.2d 86, 89-90 (Ind. Ct.

App. 2011) (The enhancement of an OWI conviction to a Class C felony based

on an enhancement statute enacted after his prior conviction for OWI causing
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 death means that “Simmons is not being re-punished for his prior crime, nor

has the penalty for his prior crime been enhanced. He is simply being punished

as a recidivist based upon his most recent act of OWI”).

[23] The HTV statute aims to regulate the dangerous conduct of the driver, and is a

“protection of the remaining public using the highways.” Hamilton v. State ex

rel. Van Natta, 323 N.E.2d 659, 660 (Ind. Ct. App. 1975), reh’g denied, appeal

dismissed, 424 U.S. 901 (1976) (quoting State ex rel. Van Natta v. Rising, 310

N.E.2d 873, 875 (Ind. 1974)). Because the addition of subsection 4(e) to the

HTV statute only sought to clarify the calculation method used in the HTV

determination, it did not amend the offense nor alter the penalty and was

procedural in nature. See Weaver, 845 N.E.2d at 1070. Even though, as here,

where the statutory amendment “may work to the disadvantage of a

defendant,” this hardship does not propel a procedural change into the ex post

facto realm. Hayden, 771 N.E.2d at 102. Accordingly, we reverse the trial

court’s judgment.

CONCLUSION

[24] Based on the foregoing, we conclude that Indiana Code section 9-30-10-4(e),

which requires the BMV to use the dates of the offenses rather than the dates of

the judgments in determining a person’s status as a HTV, is a procedural

amendment which does not violate the ex post facto clauses of the Indiana and

United States Constitutions.

[25] Reversed.

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[26] Altice, J. concurs

[27] Brown, J. dissents with separate opinion

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 IN THE
COURT OF APPEALS OF INDIANA

Kent W. Abernathy, Court of Appeals Case No.
45A03-1503-MI-73
Commissioner of the Indiana
Bureau of Motor Vehicles and
Bernard Carter, Prosecuting
Attorney for Lake County,
Appellants-Respondents,

v.

Eric C. Gulden, Jeremy
Crawford, David J. Klahn, John
P. Martin, and James M.
Panozzo,
Appellees-Petitioners.

Brown, Judge, dissenting.

[28] I respectfully dissent from the majority’s conclusion that the addition of

subsection (e) to the habitual violators statute at Ind. Code § 9-30-10-4 was

procedural in nature. The majority concludes that the amendment did not

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 change the elements of the habitual violator offense, but rather sought only to

clarify the calculation method used in the habitual violator determination. I

disagree.

[29] Prior to the enactment of subsection (e), Ind. Code § 9-30-10-4 provided only

that a person who obtained three qualifying judgments within ten years was a

habitual violator. Ind. Code § 9-30-10-4(b) (2010). Under that version of the

statute, based on the dates judgments were entered on their qualifying offenses,

Appellees would not have been deemed or determined to be habitual violators.

Following the enactment of subsection (e), the dates of the offenses, rather than

the dates of the judgments, are used in “determining the number of judgments

accumulated within a ten (10) year period” and thus the elements of the

habitual offender offense are changed. Ind. Code § 9-30-10-4(e) (2012) (enacted

by Pub. L. No. 125-2012, § 349). As the elements are different, this change was

not merely procedural in nature.

[30] As the majority states, an amendment is procedural for ex post facto purposes, if

it “neither changes the elements of the crime nor enlarges its punishment.”

Ritchie v. State, 809 N.E.2d 258, 264 (Ind. 2004), reh’g denied, cert. denied, 546

U.S. 828, 126 S. Ct. 42 (2005). As applied to Appellees, the enactment of

subsection (e) resulted in determinations, specifically that Appellees were

habitual violators, that were not and could not have been made prior to the

change in the statute. While the majority may be correct that subsection (e)

clarifies the calculation method used to determine whether persons are habitual

violators under Ind. Code § 9-30-10-4, that clarification as applied to Appellees

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 defined persons as habitual violators who would not have been previously

defined as such. I believe that the enactment of subsection (e) changed the

elements of the habitual violator offense as to Appellees, that the amendment

was not procedural in nature, and that as applied to Appellees the amendment

violates the prohibition on ex post facto laws in the Indiana and United States

Constitutions.

[31] For the foregoing reasons, I would affirm the rulings of the trial court.

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